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Malladi Drugs and Pharmaceutical Limited, Chennai v/s The Union of India, New Delhi & Others

    W.P. No. 34223 of 2019 W.M.P. Nos. 34859 of 2019 & 5181 of 2020
    Decided On, 15 December 2021
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE G.K. ILANTHIRAIYAN
    For the Petitioner: ARL. Sundaresan, Senior Counsel, Cibi Vishnu, Advocates. For the Respondents: R1, B. Siudhir Kumar, R2,R5 & R6, Su. Srinivasan, Standing Counsel, R3 & R4, M. Muthusamy, Government Advocate.


Judgment Text
(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of rejection of the fifth respondent vide letter No.11020/NHAI/PIU-K“giri” W.P.4466/2019/774 dated 04.05.2019, quash the same as illegal, incompetent and unconstitutional, direct the respondents herein to accept any of the suggested alternate alignmnet plans and further forbear the respondents from acquiring the land as per the approved alignment plan of the respondents, in survey Nos.263/2A, 263/2B, 263/3A1A, 263/A1B, 263/3A2, 263/3B, 263/3C, 264/2, 264/3A, 264/3B, 266/2, 266/4, 267/3, 283/1A1, 285/1B of Vanapadi Village, Walajapet Taluk, Vellore District.)

1. This Writ Petition has been filed to call for the records relating to the impugned order of rejection of the fifth respondent vide letter No.11020/NHAI/PIU-K“giri” W.P.4466/2019/774 dated 04.05.2019, quash the same as illegal, incompetent and unconstitutional, direct the respondents herein to accept any of the suggested alternate alignmnet plans and further forbear the respondents from acquiring the land as per the approved alignment plan of the respondents, in survey Nos.263/2A, 263/2B, 263/3A1A, 263/A1B, 263/3A2, 263/3B, 263/3C, 264/2, 264/3A, 264/3B, 266/2, 266/4, 267/3, 283/1A1, 285/1B of Vanapadi Village, Walajapet Taluk, Vellore District.

2. The petitioner company has manufacturing unit at State Industries Promotion Corporation of Tamil Nadu (herein after called as “SIPCOT”) industrial complex, Ranipet, Vellore District and it carries manufacturing activities of Ephedrine Pseudoephedrine and Phenylephrine. It is situated at 14.26 acres and an additional area 12.22 acres for the purpose of green belt which is necessary for compliance with environmental norms. The said land was originally purchased by the petitioner from the SIPCOT. While being so, the fourth respondent conducted a survey relating to the acquisition of land for Chittoor – Ranipet NH4. Thereafter, the notification has been issued in the Central Government, union gazette in Ref No.594, S.O.No.674(C) under Part II, section 3 sub section 2 dated 15.02.2018. The first respondent also issued notification under Section 3A(1) of the Nation Highways Act, 1956 (herein after called as “the Act”) dated 06.03.2018, thereby proposed to acquire lands, a part of which the petitioner's land comprised in survey Nos.263/2A, 263/2B, 263/3A1A, 263/A1B, 263/3A2, 263/3B, 263/3C, 264/2, 264/3A, 264/3B, 266/2, 266/4, 267/3, 283/1A1, 285/1B of Vanapadi Village, Walajapet Taluk, Vellore District. The said notification under 3A(1) of the Act, dated 06.03.2018 was published in the Newspaper viz., Dina Thanthi and Indian Express on the same date.

3. The proposed highway runs in the middle of the petitioner's premises and it bifurcates the manufacturing unit of the petitioner and since the existing factory is an integrated unit, the proposed acquisition would render the seamless integration redundant and will result in the closure of the factory. Therefore, the petitioner made representation on 24.11.2018 and thereafter on 10.01.2019 made another representation. Since there was no reply from the respondents, the petitioner made another representation dated 25.01.2019. Though the petitioner raised objections, the petitioner is not against the acquisition proceeding but only seeks a realignment of the proposed highway and requested for personal hearing. It was not considered by the respondents as such, the petitioner company approached this Court in W.P.No.4466 of 2019 challenging the notification issued under Section 3A(1) of the Act dated 06.03.2018.

4. While pending the Writ Petition, the petitioner's objections by representations were rejected by the second respondent by an order dated 20.02.2019, stating that the alignment as proposed by the respondents cannot be modified at this stage. Thereafter, the first respondent had issued notification under sub section (2) of Section 3D of the Act, published in Central Government gazette on 13.02.2019, declaring that the land specified shall vest absolutely with the Central Government, free from encumbrances. Therefore, the petitioner filed petition to amend the prayer thereby challenging the notification issued under Section 3D(2) of the Act. This Court by an order dated 11.03.2019 directed the respondents to consider the petitioner's objection/representation dated 04.02.2019 and also directed the technical expert body to look into the feasibility of accepting any one of the alternative alignment plan suggested by the petitioner.

5. Thereafter, the petitioner made representation on 29.04.2019 to the respondents 3 to 6 seeking personal hearing to explain as to how the alignment proposed by NHAI would result in the factory having to cease manufacturing activities and how the proposed alignment are only a minor adjustment to what is proposed by NHAI and demonstrate how the same is feasible and more economical than the alignment that is sought to be implementation by the respondents. Thereafter, the impugned order dated 07.05.2019 was passed by the fifth respondent for the reason that the alternative alignment suggested by the petitioner cannot be considered.

6. The learned Senior Counsel appearing for the petitioner submitted that the impugned order passed mechanically without application of mind and without giving opportunity of hearing to the petitioner to explain and substantiate the alternate alignment plan. The alternative alignment plans have been devised by the petitioner company by hiring experts. Therefore, the petitioner company ought to have been given a fair opportunity to substantiate its merits. Though the petitioner made several representations seeking opportunity of hearing, the same were not considered before passing the impugned order. Therefore, it violates the principles of natural justice and the impugned order cannot be sustained.

6.1. He further submitted that when this Court specifically directed the respondents to appoint technical expert body to take decision with regard to realignment of the proposed road, the petitioner should have been given opportunity before passing the impugned order. Further, the finding in the impugned order pertaining to the feasibility of alternative alignment plans lack clarity, reason or any application of mind and without considering the reasons stated by the petitioner, the impugned order has been passed. The alignment proposed by the fifth respondent would result in the factory having to cease manufacturing activities and the proposed alignments are only minor adjustment and it would be more economical, feasible and useful to all general public.

6.2. He also submitted that as per the realignment plan submitted by the petitioner, no building will be affected and only in the vacant land, the proposed road will be laid. The petitioner company has obtained 39 licenses and permission to operate the unit from various State and Central Government Departments and therefore after demolition of the structures, the unit will not be granted fresh approval, permission and licenses. If the proposed alignment of the road accepted, the manufacturing facility will have to be shut down and livelihood of the the employees would be put in peril and that the action of the respondents hit by Article 21 of the Constitution of India.

7. Per contra, the fifth respondent filed counter and the leanrned Standing Counsel submitted that the Government of India by the notification dated 15.02.2018 has published gazette under Section 3A(1) of the Act and substance of notification was also published on 15.03.2018, inviting objections from the interested persons. However, the petitioner has not submitted any objection as against the acquisition proceedings, within the prescribed time limit of 21 days viz., on or before 04.04.2018 for considering under Section 3C(2) of the Act, enquiry. On receipt of the report from the fourth respondent, the first respondent had published declaration notification under Section 3D(1) of the Act, dated 13.02.2019, including the petitioner's land. After the said notification, the entire land vest with the Central Government free from all encumbrances. Subsequently, the petitioner made representation vide suggesting alternate alignments with the request to realign the alignment which was notified under Section 3A(1) of the Act dated 15.03.2018. Since the alternate proposal was not in conformity with the IRC guidelines and against the technical design of Detailed Project Report (herein after called as “DPR”) of the consultant, the petitioner was informed on 07.05.2019 that the proposal cannot be accepted.

7.1. The subject land is situated at 115.830 Km., and was abutting the existing national highways. As per DPR, a bypass to Ranipet town has been proposed from 106.800 Km., to 116.900 Km. As per DPR, the new alignments has been proposed about 10.60 m from the existing national highway and the alignments has been fixed with minimal land acquisition in petitioner's land without compromising geometry & IRC standards and specifications for four lane national highways. Therefore, the proposed alignment has been fixed judiciously in accordance with the requirement of road widening by complying the IRC guidelines. As per the alignment, an extent of 17.159 sq.m., has been proposed for land acquisition out of total extent of 1,42,185 sq.m., belonging to the petitioner which is abutting the edge of the factory. The DPR Consultant prepared land plan schedule as per approved alignment by avoiding major part of the petitioner land without compromising geometrics. The alignment has been fixed with minimal acquisition of petitioner's land by keeping the alignment in the rear end of the factory.

7.2. While pending this Writ Petition, this Court by an order dated 17.12.2019, directed the fifth respondent to provide opportunity of personal hearing along with its experts to make suggestions for the alternate alignment plans on 03.01.2020. In compliance with the direction of this Court, the fifth respondent had constituted a technical Committee to explore the feasibility to adopt the suggested alignment of the petitioner, consisting of D.S.Arvind, Joint Advisor, D.V.Narayan, G.M.(Tech), PD Krishnagir and N.Varadarajan, D.G.M (Tech), PD, Salem. The meeting was held by the Committee comprising the Technical Officers along with General Manager of DPR Consultant M/s. Secon Private Limited on 03.01.2020, with the representatives of the petitioner. In fact, the petitioner company's Vice President, enquired about the method adopted in finalizing the alignment. In response, the General Manager of DPR Consultant, mentioned that the alignment will be finalized duly taking into consideration of technical parameters such as speed, geometric requirements with minimum impacts on the buildings, forest area, water bodies etc. Accordingly, the most feasible alignment was finalized and sent to the third respondent.

7.3. In that meeting the distance of flare post i.e., about 19 m., from the proposed ROW and 27 m., from the proposed carriage way approved alignment was discussed. It was also mentioned by the General Manager of DPR Consultant that the flare post of TCL & Ultramarines Industries situated adjoining to the petitioner company exists very close to existing road about 13- 16m. Therefore, the Committee explained that as the alignment was already approved in 2013 duly following various procedures, the land acquisition process also completed upto Section 3D of the Act and the enquiries under Section 3G is over. It is difficult at this stage for modification of alignment as the same will result in realigning about 1.5 km., length. The modification also will affect other land owners, which may lead to litigation. On the request made by the petitioner, the Committee decided to meet again after receipt of the details which were submitted by the petitioner.

7.4. Again, the second meeting was held on 07.03.2020, on receipt of the details from the petitioner. The Committee explained that the area required for composting could be accommodated in the remaining area modifying the alignment for an extent of 1.8 km., at this juncture is not possible as 3D activities are already completed and further proceedings would delay the project and also public/legal problem. Therefore, the petitioner was suggested to examine alternative plan to accommodate the composting yards in the left over area and carrying the effluent generated from the plant to compositing yards through utility ducts, which can be accommodated under the proposed alignment. Accordingly, the Committee concluded that the modification in the alignment approved during 2013 is not feasible at this juncture, as substantial land acquisition activities upto 3D stage and also enquires under 3G also completed. Hence, the learned Standing Counsel appearing for the fifth respondent submitted that the request of the petitioner cannot be considered at this stage and prayed for dismissal of this Writ Petition. In support of his contention, the learned Standing Counsel appearing for the fifth respondent relied upon the following reported judgments :-

(i) 2011 (12) SCC 69 – Union of India Vs. Kushala Shetty

(ii) 1997 (1) SCC 134 – Ramniklal N. Bhutta & anr Vs. State of Maharashtra & ors.

(iii)2019 (3) CTC 65 – Texmo Precision Casting Vs. The Secretary Ministry of Road Transport and Highways.

(iv) W.P.(MD)No.20670 & 20671 of 2016 – Arunkumar Vs. The Government of India & ors (v) AIR 1999 SCC 3822 – Delhi Administration Vs. Gurdip Singh Uban

(vi) 2007 (6) MLJ - Krishnaveni Vs. Union of India.

(vii) 2004 (1) MLJ 628 – Shanthi Vs. The State of Tamil Nadu.

8. Heard Mr.ARL.Sundaresan, learned Senior Counsel appearing for the petitioner, Mr.B.Sudhir Kumar, learned counsel appearing for the first respondent, Mr.Su.Srinivasan, learned Standing Counsel appearing for the respondents 2,5 & 6 and Mr.M.Muthusamy, learned Government Advocate appearing for the respondents 3 & 4.

9. The Government of India vide gazette No.1159 S.O.1728(E) dated 12.05.2016 has issued 3(a) notification for appointment of CALA, Vellore as Competent Authority for acquisition of additional land required for the project of Ranipet/Walajahpet – Tamil Nadu/Andhra Pradesh border section of NH-4. After approval of proposed alignment the Special District Revenue Officer & CALA, Vellore has submitted draft 3A notification including the petitioner's lands in the survey Nos.263/2A for an extent is 235 sq.mt., and 285/1B extent is 9148 sq.mt., in Vanapadi Village, Walajah Taluk, The Government of India vide S.O.674(D) dated 15.02.2018 has published Gazette under Section 3-A(1) of the Act and the substance of notification was also published in two local dailies viz., Indian Express and Daily Thanthi on 15.03.2018, inviting objections from the interested persons under Section 3C of the Act. However, the petitioner did not submit any objections as against the acquisition proceedings within the prescribed time limit of 21 days i.e., on or before 04.04.2018 for considering in equiry under Section 3C(2) of the Act.

10. Thereafter, on receipt of the report from the fourth respondent, the first respondent herein published the declaration notification under Section 3D(1) of the Act in the gazette of Government of India vide S.O.865(E) dated 13.02.2019 including the petitioners lands in survey Nos.263/3B2, 623/3C2, 263/3C3, 264/2B, 264/3A2, 264/3B2, 266/1B, 266/2B, 266/4B, 267/3B, 283/1A1B & 285/1B2 in Vanapadi Village, Walajapet Taluk, Vellore District. The petitioner challenged the notification dated 06.03.2018 under Section 3A(1) of the Act in W.P.No.4466 of 2019. While pending the Writ Petition, the notification under Section 3D(2) of the Act was published on 13.02.2019. Therefore, the petitioner amended the prayer challenging the notification issued under Section 3D(2) of the Act. Further, by an order dated 11.03.2019, this Court directed the technical expert body to look into the feasibility of accepting any one of the alternative alignment plans submitted by the petitioner, with other directions as follows:-

“11. Therefore, in the present case, by consent of both the parties, this Court directed the technical expert body to look into the feasibility of accepting any one of the alternative alignment plan stated by the petitioner company. But, considering the limited scope of the request made by the petitioner herein, this Court is inclined to pass the following orders:

(i) The respondents are directed to consider t he petitioner objections/ representation dated 04.02.2019 and to take a decision and communicated dated 04.02.2019 and to take a decision and communicate the said decision to the petitioner within four weeks from the date of receipt of a copy of this order.

(ii) It is made clear that in the terms of the notification vide Ref.No.Na.Ka.No.G4/2/2016, dated 06.03.2018, and notification under sub Section (2) of Section 3D of the National Highways Act, 1956, dated 13.02.2019 are subject to the decision of the expert report.

(iii) The Writ Petition is disposed of with the above direction. No costs. Consequently, the connected Writ Miscellaneous petitions are closed.

(iv) Till the final decision is taken in respect of the above said objection/ representation made by the petitioner, the respondents shall no take any coercive action against the petitioner” This Court specifically directed the respondents to consider the petitioner's request and take decision and communicate the said decision to the petitioner.

11. Accordingly, as directed by this Court, the fifth respondent considered the petitioner's representation and forwarded to the DPR Consultant M/s. Secon Private Limited by a letter dated 30.03.2019. The DPR Consultant had examined the suggested alternate alignment and recommended that “the alternate alignment proposal No.1 passes through eight number of building and as such it cannot be considered at this state. Insofar as the alternate alignment No.2, is of poor geometrics. Therefore, the proposal alignments suggested by the petitioner is not suitable for national highways design. The said proposal requires additional acquisition in order to maintain proper geometrics to comply IRC guidelines to maintain road safety and the desired speed level. It also results in initiation of the land acquisition process afresh, detailed studies, which is time consuming and delays the implementation of the project. Therefore, the request for realignment of the road has been rejected by the fifth respondent and the same has been challenged in this Writ Petition.

12. While pending this Writ Petition, as directed by this Court by an Order dated 17.12.2019, the fifth respondent constituted a Technical Committee consisting of D.S.Arvind, Joint Advisor, D.V.Narayan, G.M.(Tech), PD Krishnagir and N.Varadarajan, D.G.M (Tech), PD, Salem and thereafter the Committee convened meeting on 03.01.2020 with the representatives of the petitioner. Finally the Committee intimated as follows:-

“13.7........the distance of flare stack will be about 20m from the ROW and 27 m from the proposed carriage way, also as the area required for composting could be accommodated in the remaining area modifying the alignment for an extent of 1.8 Km at this juncture is not possible as 3(D) activities are already completed and further revision would delay the project considerably and also result in public/legal problems as this may also lead to litigating with other affected land owners as well as newly affected land owners. Accordingly M/s.MDPL was suggested to examine the alternative plan of accommodating the composting yards in the left over area and carrying the effluent generated from the plant to composting yards through utility ducts, which can be accommodated under the proposed alignment.”

Therefore, the Committee requested the petitioner to submit Pollution Control Board approval and concluded that the modifications in the alignment approved during 2013 is not feasible at this juncture.

13. That apart, though this Court directed the respondents to consider the petitioner's representation by the technical experts to explore the possibility of utilizing the alternative land, it doesn't mean that the expert Committee should consider about the effect on the petitioner's factory premises, if the proposed alignment of road laid. Thus, the fifth respondent rightly considered the request of the petitioner and passed the order dated 07.05.2019. In fact, while pending this Writ Petition, on the request of the petitioner, this Court directed the fifth respondent to form a Committee of experts and accordingly, the Committee was formed and conducted detail enquiry by two meetings and finally concluded that the modification in the alignments approved during 2013 is not feasible. The learned Senior Counsel appearing for the petitioner vehemently contended that the very same authority viz., the fifth respondent herein, without even forming a Committee of experts from the outside, passed impugned order. Further the fifth resp

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ondent only initiated the proposed alignment of road on the petitioner's factory. Therefore, the same fifth respondent should not have considered the request made by the petitioner. 14. In this regard, the learned Standing Counsel appearing for the fifth respondent relied upon the judgment reported in 2011 (12) SCC 69 in the case of Union of India Vs. Kushala Shetty in which, the Hon'ble Supreme Court of India held that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. 15. That apart, it is well settled that the Court will not normally transgress in to the field of policy decision or opinion of experts of the particular field. The Court cannot make a rowing enquiry as to whether a public policy is wise and whether better public policy can be involved. In the absence of any malafide or unreasonableness or unfairness, the decision of the authorities cannot be faulted at all. Therefore, this Court finds no infirmity or illegality in the order passed by the fifth respondent and this Writ Petition is devoid of merits and is liable to be dismissed. 16. Accordingly, the Writ Petition stands dismissed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
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